People v. Howard

The defendant is charged in the information with the crime of rape, alleged to have been committed on the fifteenth day of August, 1901, by having sexual intercourse with Irene Farias, a female under sixteen years of age. He was found guilty and sentenced to imprisonment at San Quentin for thirty years. This was beyond the expectancy of defendant’s life for that which was not a crime at common law and only a misdemeanor in many jurisdictions. (People v. Derbert, 138 Cal. 467 .)

1. It is claimed that there is no evidence that defendant ever had sexual intercourse with Irene Farias, and we think the claim is well founded. Under our statute it is rape to have sexual intercourse with a female under the age of sixteen not the wife of the perpetrator. Any sexual penetration, however slight, is sufficient to complete the crime. (Pen. Code, sees. 261, 263.) It is essential, in order to find a defendant guilty of rape, that sexual penetration be proven, or that facts be proven from which it may be inferred. It is said in Underhill on Criminal Evidence (see. 416): “Proof of

In speaking of the statutory crime which is in many jurisdictions termed the carnal abuse of female children, Mr. Bishop, in his late work on Statutory Crimes (3d ed., sec. 488), says: “The carnal knowledge required in this offense is the same as in rape proper, explained in another connection. There must be res in re, but to no particular depth, and the hymen need not be broken.”

The supreme court of Wisconsin in a case where the defendant was convicted of rape upon a female child twelve years of age reversed the case, and among other things held that the evidence was not sufficient. (Hardtke v. State, 67 Wis. 552 .) The court said: “There was not a particle of evidence in the case of penetration.” In State v. Dalton, 106 Mo. 463 , the defendant was charged with rape upon a. female child under the age of twelve years, and was convicted. The evidence showed that defendant, a married man, during the absence of his wife and family, in the night-time left his room and went to the room when the girl slept and got in bed with her. He then toyed with her, held her in his arms, pulled up her clothes, and for some time continued his lewd solicitations. The court reversed the case, and said: “We think it clear that the evidence entirely fails to sustain the charge of rape. All the authorities agree that penetration is necessary to constitute the offense. There has been some discussion by the courts and differences of opinion as to the extent of the penetration necessary to complete the crime, but none deny its necessity to some extent, or that it must be proved beyond a reasonable doubt. (2 Bishop on Criminal Law, sec. 1132; 1 Wharton on Criminal Law, sec. 554, and authorities cited.) ” And the court correctly charged the jury that sexual penetration is necessary to constitute the crime of rape. It is therefore clear that to sustain the charge the prosecution must have proven sexual intercourse, which includes and means sexual penetration. It is the usual and ordinary practice, so far as we are informed, to prove the facts fully. Not legal conclusions or terms, but the acts that were done by defendant in detail. Such acts, when proven, must show

The witness, in answer to other questions, testified: “That took place on this side of the stove. There was a cot there. There is where it took place.” This is all the evidence in the record as to the act claimed to constitute the crime of rape, except the evidence of the defendant, who testified that he never at any time had sexual intercourse with the prosecuting witness. Intercourse means “a commingling; intimate connections or dealings between persons or nations, as in common affairs and civilities, in correspondence or trade; communication; commerce, especially interchange of thought and feeling; association; communion.” (Webster’s Dictionary.) There was testimony to the effect that the prosecuting witness was often in the defendant’s tent, and that she some

2. As the crime charged is only made such by the statute it was material for the prosecution to prove that Irene Parias was under sixteen years of age at the time. Por this purpose the prosecuting witness testified that she was over fifteen and under sixteen years of age. The trial took place in April, 1902, and the witness testified that she was sixteen the preceding March.

In cross-examination the defendant’s counsel asked her the following questions:—

“Q. Do you remember telling Mrs. French, Ruth French, Roy French, and James Cloyd you were seventeen years olds”

“ Q. Do you recollect telling Mrs. French and Ruth French

a .short time before the defendant in this ease was arrested' that you were seventeen years old!”

‘‘Q. Do you recollect being at Mrs. French’s house on N Street in this city on Sunday evening prior to the arrest of Mr. Howard!—A. Yes, sir.”

“Q. Do you recollect stating at that time to Ruth French and her mother that you were seventeen years old!—A. Not then I didn’t.”

“Q. Do you recollect ever telling that to them!”

The court sustained the objection of the district attorney to each of the above questions, except the two where the answers are stated. The defendant’s attorney then asked the witness:—•

“ Q. You recollect testifying in the lower court before Judge Cosgrave, do you not, in this case!—A. Yes, sir.”

“Q. Did you then state as follows: This is the question; ‘Did you state to Mrs. French and Ruth French that you were seventeen years old!’ and your answer was ‘Yes, sir.’ Did you so testify then!”

‘‘Q. Did you at any time that you now recollect state to any person during the past year that you were seventeen years old!”

‘‘Q. Do you recollect stating that you were seventeen years old to Frank Nelson, the policeman; to A. Tommasini, a policeman of the city of Fresno; to Roy French, Mrs. French, Ruth French, Mrs. Flora French, Mr. Smith, Miss Wilda Smith, James Smith, James Cloyd, to Parker Lane and numerous other people during the past year!”

The court sustained objections to each of the above questions. The defendant saved an exception to the ruling and to the ruling on each question as herein stated. It is evident that the court erred in the rulings. If Irene Farias was seventeen years of age in March, 1902, it should have been shown. It was of the greatest importance to defendant that he should have been permitted to cross-examine the prosecutrix, who had testified to her own age. If she had told various other parties that she was seventeen, the defendant had the right to bring out such facts, and she could make such explanation as she desired, provided she had any explanations to make. If, prior to the arrest of the defendant, and before any legal question was involved as to her age, Irene Farias

• 3. The defendant asked and the court refused to give the following instruction: “You are instructed that you cannot find the defendant guilty in this case upon proof alone that defendant had intercourse with the complaining witness.” This instruction should have been given.

If there was no evidence of “sexual” intercourse, or that the prosecuting witness was under sixteen years at the time charged, the jury should not have found defendant guilty.

Other errors are urged by appellant, but as the case must be reversed for the reasons herein given, it is not necessary to discuss them.

We advise that the judgment and order be reversed.

Harrison, 0., concurred.

McFarland, J., Angellotti, J., Van Dyke, J., Lorigan, J.

I concur in the judgment. The sexual intercourse, if any, between the prosecutrix and defendant was with her full consent, and it was therefore essential to show that she was under sixteen at the date of such intercourse. The evidence on this point was exceedingly weak. The prosecutrix testified, in effect, that she was between fifteen and sixteen at the date of the alleged offense, but it was clearly proved, and practically admitted by her, that she had made statements to a number of persons on different occasions which if true proved that she was over sixteen, and she offered no explanation of this discrepancy. Her mother testified on direct examination that the prosecutrix was between fifteen and sixteen, but on cross-examination could not give the year of her birth. The trial was in Fresno, where the girl was born, and where it is reasonable to suppose witnesses could have been found to fix the date of her birth, but no evidence was offered to corroborate that which I have stated.

Weak as the testimony was, however, upon this and other points, the judgment and order of the superior court could not perhaps be reversed here upon that ground alone, but certainly the case is one in which the refusal of proper instructions cannot be excused upon the ground that such rulings were not prejudicial.

Among other instructions requested by defendant, and refused by the court, were the following:—

“If the jury believe from the evidence that at the time the offense is alleged to have been committed the prosecuting witness made no outcry and didn’t immediately complain to others, but concealed it for several months and then only told it by reason of threats and promises, then the jury should take" this circumstance into consideration with all the other evidence in determining the credibility of such witness and whether a rape was in fact committed or not.”

“You are further instructed that the defendant is presumed to be innocent until the guilt is established by such evidence as will exclude every reasonable doubt. Therefore